In my last post on the VC, I would like to say a bit about so-called "hate speech" (which I address in the last chapter of my book, arguing that it should be constitutionally protected in public schools). I say "so-called," because it might be better to drop the term "hate speech" insofar as it implies an extreme aversion to a particular group. However, in this post, I will use the term for convenience.

No single legal definition of hate speech exists. The term is notoriously difficult to define with sufficient precision. As a result, those who support anti-hate speech codes on college campuses, for example, must say more about what to do about invariable vagueness and overbreadth problems than they usually do. That hate speech is constitutionally protected in the U.S. has not stopped university administrators to try to make it much harder for students to express certain ideas with impunity.

I doubt that any anti-hate speech code at a public school could be formulated and applied in a way that would not ban or chill speech that ought to be constitutionally protected. Such codes would be ripe for overreach and misapplication, apart from allowing viewpoint discrimination. It is important to understand that even if a particular word—like a racial slur—has little, if any free speech value most of the time, the fundamental problem is that if the government can ban that word, then it also has the authority to ban other words, regardless of the context and the intent of the speaker or writer.

In the late 1980s and 1990s, lower courts struck down a variety of speech codes on college campuses. In R.A.V. v. City of St. Paul, writing for the majority, Justice Antonin Scalia invalidated a Minneapolis anti-hate speech ordinance on the ground that it was underinclusive. For him, the law in question invited government to engage in viewpoint discrimination inasmuch as people could be prosecuted for expressing racist views but not for expressing racially egalitarian views or homophobic views.

In Scalia's view, government must remain neutral towards all viewpoints, even racist ones, so that the "fight" is fair. No viewpoint is better or worse than another from the standpoint of the First Amendment, and it is up to the public to decide which ideas they will embrace and reject. There is no way to regulate hate speech without also censoring ideas. Doctrinally, that fact presents an enormous problem for those who want to alter the constitutional state quo by creating a new category of unprotected speech. It is not evident how to balance the importance of free speech against the importance of protecting victims of hate speech from some sort of harm. Reasonable people disagree about how harmful it is likely to be, which is situational and can vary from person to person, and what can or should be done about it.

Progressives should not be so eager to embrace bans on hate speech when their own chickens could come home to roost. Recently, some European countries have curbed pro-Palestinian protests designed to raise awareness about the violence in Gaza. This response is problematic for a few reasons, including the importance of the expression of the viewpoint that the Israeli conduct is unjust (regardless of whether this proposition is true) so that the public can decide for itself which side, if any, to take.

This generation of college students is more inclined to suppress speech that offends minorities, makes them feel uncomfortable, or undermines their equality. This inclination comes from the right place but the implementation of such a speech code would have a high cost: trying to protect vulnerable students from hurtful ideas, school officials would be able to engage in viewpoint discrimination and punish students who express their sincere beliefs, which of course, may be wrong.

Additionally, censorship may reduce the likelihood that uncomfortable conversations will take place that will enlighten white students who may be racially illiterate. A number of years ago, I was taken aback when I realized how many of my students, who had grown up in this county, did not know why people burn crosses. When a white student wears blackface to school as part of a Halloween costume, school officials and teachers have an opportunity to educate students about the historical meaning of minstrel shows and its present-day implications. Understandable anger or outrage should not replace the need to explain why such a costume is problematic; it is not as if all or even many junior high and high school students (or adults for that matter) know why that is so. At minimum, all students must become used to encountering unwelcome ideas, even the worst ones.

Few people will want to talk about race openly and honestly if what they say could be considered racist speech under an amorphous anti-hate speech code. A few years ago, at the Georgetown Law Center, Professor Ilya Shapiro was investigated (and eventually cleared after several months before he resigned), for making an offensive comment on Twitter about then-U.S. Supreme Court nominee Ketanji Brown-Jackson and her being a "lesser black woman." Regardless of whether Shapiro was right or whether he phrased his comment well, he meant that President Joseph Biden should not have promised to put a black woman on the Court during his presidential campaign in 2020. Apparently in Shapiro's mind, Biden should have picked from a much wider pool of qualified applicants. Surely at law schools and elsewhere, there is a public discussion worth having about the meaning of merit, the judicial selection process, its political dimensions, and the lack of sex and racial diversity on the federal bench. This incident also illustrates why the threat of punishment is the wrong approach in dealing with speech that is offensive or racist. Frequently, people – students included – do not choose their words carefully when they speak extemporaneously, use social media, or blurt out something in the heat of the moment. Any sensible theory of free speech must take people as they are --error-prone, emotional, uninformed, insensitive, and thoughtless-- and not how we wish them to be.

As Matthew Kramer observes in Freedom of Expression as Self-Restraint, anti-hate speech laws are "designed to control people's thoughts." Although that may be an overstatement, Kramer is right that if we are genuinely committed to respect for the autonomy of each student, then they will make racist remarks and use racial epithets, unfortunately. They will also make mistakes that they may regret. That is the price of letting them come to her their conclusions for better or for worse. A speech code on campus is a blunt instrument. Alternative remedies must be considered before the state engages in censorship. Other non-censorious countermeasures could be equally or more effective (and much more respectful of student autonomy).

One of the most difficult challenges is to figure out exactly what to do about such speech, especially when laws proscribing it will not make it disappear, may be hard to enforce, and may have unintended consequences. It is not evident that the hate speech problem in the United States, because such speech is constitutionally protected, is worse than that of European countries in which such speech is prohibited (although that result may be due to under-enforcement). In terms of reducing hate speech, a ban on it on a high school campus may help to mitigate it, and racial and ethnic minority students may be less likely to directly experience it, but it will not disappear. At most, students who use such language are more likely to be more careful about who may overhear them or with whom they share their real beliefs.

There may be more tactful ways of expressing racist sentiments but doing so in a more "civil" manner is not necessarily much of an improvement. Doctrinally, people are allowed to express pernicious stereotypes and make outrageous claims; it is not the role of government to censor them. Alternatively, "good" speech can counteract "bad" speech, with good or bad often being in the eye of the beholder.

Students may want to engage in such speech yet do not do so for fear of being suspended or expelled. We should not necessarily want a racist student punished for what they say or write; we should want them refuted. The expression of racist ideas can have some educational value, then, when educators can turn an incident into a teachable moment. So, yes, to answer one VC reader's query in the comments section, a student should be able to use the "n" word without the possibility of being disciplined. But that is not to say that they should use the word. To have a legal or constitutional right to do this or that does not entail that it is fine to exercise such a right whenever they happen to want to do so. It is to say that it is their choice and that others are free to respond with their own counter speech.

The post Hate Speech at a High School appeared first on Reason.com.

Bethany G. sought a protective order protecting H. C., her minor son, from H. C.'s father, Rudy C. Numerous witnesses testified at a hotly contested hearing after which the parties filed closing briefs. Rudy's brief, submitted by counsel, contained fictitious caselaw and misstated the law. Counsel for Bethany directly and swiftly pointed the errors out to the trial court.

The trial court declined to issue the requested order, but its ruling erroneously relied on a nonexistent case and a serious legal misstatement—the very same shortcomings Bethany had already noted. As explained below, we reverse for further proceedings….

After the evidence was presented, but before the trial court ruled, Rudy's counsel filed a closing brief. Most pertinent here, the brief contains the following portions:

"2) Insufficient Evidence of Harassment or Disturbing the Peace

"Under Family Code § 6320, abuse can include harassment or disturbing the peace of the other party. However, California courts have held that the behavior must be persistent, egregious, and intended to disturb the victim's peace. In Enrique M. v. Angelina V. (2005) 15 Cal.App.5th 788, the court emphasized that disturbing the peace should be understood as conduct that 'destroys the mental or emotional calm of the other party.'

"In this case, the alleged incidents presented by Bethany do not rise to the level of severe, ongoing behavior required to meet the standard of 'harassment' or 'disturbing the peace.' The incidents presented lack the frequency, intensity, or impact required under the statutory definition and supporting case law, rendering them insufficient to constitute harassment or disturbing the peace.

"3) Failure to Demonstrate Reasonable Fear of Immediate Harm

"Family Code § 6203 also requires that abuse must place the petitioner in reasonable apprehension of imminent serious bodily injury. Petitioner has failed to demonstrate any legitimate, immediate fear of bodily harm that is objectively reasonable under the circumstances."

Bethany, also through counsel, replied to the brief, pointing out the citation to Enrique M. v. Angelina V. (2005) 15 Cal.App.5th 788 did not exist. {Bethany's counsel has identified a case, Enrique M. v. Angelina V. (2004) 121 Cal.App.4th 1371, which involved a father's request to modify a custody order and is otherwise inapplicable to the present case.} Counsel also noted Family Code section 6203 did not require proving "legitimate, immediate fear of bodily harm that is objectively reasonable" before a restraining order may issue.

The trial court {Judge Irene A. Luna} issued a written ruling in Rudy's favor. It contains the following pertinent portion [which is nearly identical to the brief submitted on Rudy's behalf -EV] ….

Here, in our view, the trial court committed at least two clear legal errors. First, the trial court cited and relied on a fictitious case, i.e., Enrique M. v. Angelina V. (2005) 15 Cal.App.5th 788. The error is underscored by the fact Bethany brought the fictitious citation to the court's attention. The court ignored Bethany's warning, and relied on it in its ruling. The trial court clearly incorporated this part of Rudy's brief into its ruling because the ruling is a verbatim reproduction—save for changing "Bethany" to "Mother"—including a spacing typo.

Second, the trial court's ruling reproducing Rudy's brief misstated section 6203, the section defining abuse under the DVPA. Section 6203, subdivision (a) provides four independent circumstances constituting abuse:

"(1) To intentionally or recklessly cause or attempt to cause bodily injury.

"(2) Sexual assault.

"(3) To place a person in reasonable apprehension of imminent serious bodily injury to that person or to another.

"(4) To engage in any behavior that has been or could be enjoined pursuant to Section 6320."

The trial court nonetheless ruled section 6203 "requires that abuse must place the petitioner in reasonable apprehension of imminent serious bodily injury."

The ruling misstates the law. Section 6203 is written in the alternative and not the conjunctive. Each subsection alone can constitute abuse. Immediate bodily injury is not a prerequisite to issuing a protective order.

"We have no difficulty concluding that it is an abuse of discretion for a court to rely in material part on fictional case authorities in rendering a decision or making an order. Reliance on fake cases is fundamentally incompatible with an informed exercise of discretion controlled by genuine principles of law. It seriously undermines the integrity of the outcome and erodes public confidence in our judicial system. It can also hinder meaningful appellate review." …

When faced with nonexistent case law and misconstrued statutes brought to its attention, the court incorporated the objectionable material into its final ruling. The court's ruling is without doubt an abuse of discretion and our confidence in the outcome is sufficiently undermined to justify reversal. For all future proceedings in this matter, we direct the matter be assigned to a new trial judge.

With respect to Rudy's counsel's actions, "Business and Professions Code section 6068, subdivision (d), states it is the duty of an attorney '[t]o employ … those means only as are consistent with truth, and never to seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law.' California Rules of Professional Conduct, rule 3.3(a)(1) and (2), prohibit an attorney from 'knowingly mak[ing] a false statement of fact or law to a tribunal or fail[ing] to correct a false statement of material fact or law previously made to the tribunal by the lawyer' or 'knowingly misquot[ing] to a tribunal the language of a book, statute, decision or other authority.' A person's knowledge may be inferred from the circumstances."

The judgment is reversed. The matter is remanded for further proceedings consistent with this opinion….

Amanda G. Hebesha, John P. Kinsey, and Stephanie Hosman (Wanger Jones Helsley PC) represent Bethany G.

The post California Judge "Cited and Relied on a Fictitious Case" Submitted by Lawyer, Even Though … appeared first on Reason.com.

On June 2 at the Library of Congress, Eugene Volokh, one of the country's preeminent First Amendment scholars and a Federalist Society member; Emerson Sykes, a staff attorney at the ACLU who focuses on free speech; and Mary Anne Franks, professor at the George Washington University Law School and a leading thinker on the relationship between free expression and equality—in conversation with moderator David Lat, founder of Above the Law and Original Jurisdiction—will dig into the questions that the headlines have missed.

If you're in D.C. Tuesday, please do come by; should be a lot of fun.

The post Panel on Free Speech at the Library of Congress This Tuesday (June 2), 5:30 to 7:30 pm (Moderated by David Lat) appeared first on Reason.com.

In this post, I shall continue down the free speech as autonomy-enhancing path, contending that engagement in freedom of expression activities (and its effects) in public schools can be politically educational, helping to prepare students for the public deliberation that a democracy like ours requires. It is not unusual for commentators, including judges, to associate public schools with civic education and democracy. In his recent majority opinion in Mahanoy, Justice Stephen Breyer characterizes them as "nurseries of democracy."

The relationship between free speech and civic education takes center-stage in what follows, with emphasis on the importance of trying to bring a certain kind of person into being, namely an autonomous one. A good democratic citizen will have adequate critical thinking skills, be open-minded, listen, and interact with those with whom they disagree in a manner that treats everyone as an equal member of the diverse political community.

The exercise of free speech rights by students, in public fora at their respective public schools, can make them more accustomed to the inevitably of disagreement. That way, they can learn how to disagree with others, who do not share their deepest political convictions, without necessarily concluding that they are stupid or evil. In conjunction with democratic education as part of the curriculum, they must be actively involved in educating themselves. No one can do it for them.

The practice of free speech can contribute to the development of critical thinking skills improve their ability to deliberate in the future. Long before they become adults, they should be able to take part in discursive activities so that they are familiar with how deliberation in a democracy is supposed to work. There is plenty of room for improvement. Like any other capacity, an intellectual capacity can be cultivated over time, with positive reinforcement and the appropriate educational experiences. There is no reason why some of those formative educational experiences cannot take place during junior high or high school when students interact with one another outside of class.

Americans suffer from high levels of political ignorance, coupled with poor critical thinking skills. Without competence, most people will end up making worse personal and political decisions. Democratic citizens must be able to evaluate evidence, judge the quality of political arguments and candidates for public office, assess public policy proposals, and not behave in ways that undermine the norms of their own democratic culture. For these reasons, students must practice dealing with such situations on their own, long before the stakes are much higher, without the expectation that adults constantly will intervene.

Students who begin to work on their critical thinking skills at an early age are more likely to develop a willingness to challenge authority and demand reasons from those who exercise it over them. They will not improve their critical thinking skills if they do not work on them continuously because they fear the consequences of trying to think more independently, making mistakes, or offending others. That process includes being more skeptical of authority figures, including teachers and administrators, and not caving into peer pressure (which is admittedly quite difficult during adolescence and even worse due to the ubiquity of social media). Reasons are not supposed to be good or compelling because they come from a teacher, administrator, or another authority figure in a hierarchical system.

It is a mistake to wait too long for students to have such an educational experience or believe that it will happen on its own. By college, they probably have picked up many bad habits. By age twelve or thirteen, most students are mature enough not to have school officials treat them so paternalistically when it comes to what they may say or write, thereby giving them the responsibility to decide whether they want to contribute to the marketplace of ideas at their school. Whatever else might be said about this educational approach, it is counterintuitive to assume that a regime of censorship would facilitate the development of critical thinking skills when so many learning opportunities are lost, coupled with the possibility that students are learning the wrong lessons about free speech.

Before they become adults, adolescents must learn that all of us are fallible and become more self-aware. After all, it is possible that they are wrong about this or that, irrespective of how sure they are or how strongly they feel that they are right. In the classroom, research shows that consideration of the question, "Could I be wrong?" has civic educational value. Less certainty about the correct answer (and less intellectual arrogance more generally) can prompt a student to question other beliefs and become curious about whether they, too, might be wrong or their beliefs lack evidentiary support. The first step towards being less dogmatic is to recognize how much you do not know.

Those who are exposed to speech, which they disagree with, may have their preconceptions called into question (which can be unsettling, of course, but ultimately for the best in the long run). Educationally, this experience supplements what students ought to be learning in the classroom. Exposure to all kinds of difference and disagreement must take place as soon as possible in a world where too many Americans live in echo chambers when it comes to news (and social media) and are vulnerable to confirmation bias. That does not imply that students who actually are wrong will immediately change their minds, see the error of their ways, or have sophisticated understandings of the views that they reject (yet that may come with time). That way, even amid intractable disagreement, people can become more inclined to see one another as fellow members of the political community whose autonomy must be respected, regardless of the merits of their views.

The approach of educators must be hands-off so that student speech is student-initiated, prompting students to become more actively engaged in the civic educational process. It is even more imperative for them to do so when lawmakers and school board officials have partisan agendas, trying to score points with their constituents by either making a school as woke or anti-woke as possible. The role of school authorities should be to facilitate such speech so that teenagers can begin to express their own ideas, learning to think for themselves and take responsibility for what they say or write. Above all, that objective means that students should not be pressured into remaining silent for fear of being punished when they are experimenting with the exercise of their free speech rights at school.

The threat of being punished for expression chills speech, condones indoctrination, and imparts the wrong lesson about free speech: it is permissible for those in power to stifle dissent, shut down criticism of the school, or squash unpopular ideas by suspending or expelling students for expressing themselves. In terms of the importance of free speech more generally, an enormous amount of damage can be done when students, who are young and impressionable, observe how adults, who exercise considerable authority over them at school, use that authority inappropriately.

Learning requires a certain sort of predisposition, one that makes room for the possibility that you may not be as informed as you think you are and thus, you might want to remain agnostic for the time being. The moment that you recognize that your judgment is much more fallible than you wish it were, you are more likely to be more charitable to others. A reasonable person can acknowledge that the evidentiary support for her view may turn out to be weaker than she initially thought it was. Many people have gone through the experience of looking back on their lives and wondering how they possibly could have believed something, with conviction, that they now know was obviously false or terribly wrong. For these reasons, the exercise of free speech rights can be educational.

Education is not supposed to be about intellectual comfort. Students should begin to have such experiences long before they are eighteen years old. By that time, many of them will have developed bad intellectual habits and attitudes. That is why it sooner rather than later junior high and high school students to be prompted to share their own views, no matter how underdeveloped they may be, long before some of them set foot on a college campus. This approach would also inculcate in them the idea that learning is not about memorization or having a teacher tell them what the right answers are. As Mill maintained, everyone must go through the mental exercise of figuring out for themselves what is true and what is false. The exercise of free speech in public schools is one way for students to become more intellectually independent over time, as both a person and a citizen in a democracy.

The post Student Speech and Civic Education appeared first on Reason.com.

Alliance Defending Freedom is seeking Senior Counsel with 10+ years of experience to join our Center for Life and Center for Parental Rights teams. ADF is the largest religious liberty law firm in the world, with 18 Supreme Court wins since 2011 and a growing team of attorneys committed to defending free speech, religious freedom, parental rights, and the sanctity of life. Experienced litigators seeking high-impact, meaningful work should consider applying. Please apply here or reach out to Katie Garrard, Lead Recruiter, kgarrard@adflegal.org.

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Yet, judges seem to forget their role. The Fourth Circuit, in particular, has been summarily reversed twice in one term for violating the party presentation principle. In November, the Supreme Court SumRev'd the Fourth Circuit in Clark v. Sweeney You might think the judges in Richmond would take a hint, but no such luck. Yesterday, the Supreme Court summarily reversed the en banc Fourth Circuit in Margolin v. National Association of Immigration Judges. I wrote about this case back in December.

The Court explained that the party presentation principle prevents judges from becoming inquisitors:

Federal courts adhere to the principle of party presentation. See Clark v. Sweeney, 607 U. S. 7, 9–10 (2025) (per curiam). That principle—the "rule that points not argued will not be considered"—distinguishes our adversarial system of justice from an inquisitorial one. United States v. Burke, 504 U. S. 229, 246 (1992) (Scalia, J., concurring in judgment). Because courts are "essentially passive instruments of government," we rely on the parties to "frame the issues for decision" and decide "only the questions presented." United States v. Sineneng-Smith, 590 U. S. 371, 375–376 (2020) (internal quotation marks omitted).

The Court explained that it had to reverse the Fourth Circuit on this principle only a few months ago:

We recently reversed the Fourth Circuit for violating this party-presentation principle.

What happened here? The Fourth Circuit remanded the case on an issue that none of the parties had presented:

The Fourth Circuit violated the party-presentation principle when it decided "a case different from the one [respondent] advanced." 160 F. 4th, at 118 (Quattlebaum, J., dissenting from denial of rehearing en banc). As respondent conceded below, our precedent establishes that Congress, through the CSRA, intended to channel covered claims to the MSPB. ECF Doc. 72, pp. 8–9; ECF Doc. 11–1, p. 18. The parties thus confined their arguments to the narrow question whether respondent's claims were, in fact, covered. Unsatisfied with rejecting respondent's arguments on that question, however, the Fourth Circuit sua sponte addressed a much broader one and remanded for further proceedings on that question. The court transformed respondent's argument that the CSRA did not channel its claims into one that the CSRA might not—in light of current conditions—channel any claims. And the court did so without giving either side a chance to address its theory.See Clark, 607 U. S., at 9. That "'drasti[c]'" departure from the principle of party presentation "'constitute[d] an abuse of discretion.'" Id., at 10 (quoting Sineneng-Smith, 590 U. S., at 375).

The Court concluded:

The Court of Appeals lost sight of those principles here.

Why did the Fourth Circuit lose sight? Justice Thomas explains why in his concurrence, joined by Justice Barrett.

Nevertheless, the Fourth Circuit strained to avoid dismissal of the case based on its belief that new political considerations changed the governing law. The court explained that it would not allow its "black robes to insulate[it] from taking notice of items in the public record." Id., at 313. Specifically, the Fourth Circuit worried that because "the President removed the Special Counsel" and "two members of the MSPB," there were now "serious questions as to whether the CSRA's adjudicatory scheme continues to function as intended." Id., at 305. Congress designed theCSRA to rely on MSPB independence, the Fourth Circuit claimed, so now that "the Government has questioned the constitutionality of the removal protections enshrined in the CSRA," it was no longer clear that the statutory scheme was functioning as Congress intended. Id., at 308. If it were not, the court reasoned, Congress might not have intended for such claims to be channeled to the MSPB any longer.

Lower court judges consistently take judicial notice of what President Trump does, and uses those actions to change the meaning of the law. As Judge Wynn said in the travel ban case nearly a decade ago, "Do we just ignore reality and look at the legality?" Justice Thomas shoots down this amateur political analysis:

The Fourth Circuit's analysis bears little resemblance tolegal interpretation. Neither the President's view that he can remove federal executive officials, see Myers v. United States, 272 U. S. 52 (1926), nor his having done so, change the meaning of the statute or the binding nature of this Court's interpretation of it. "Conditions may have changed, but the statute has not." United States ex rel. Marcus v. Hess, 317 U. S. 537, 547 (1943). Courts may not "rewrite the statutory scheme in order to approximate what we think Congress might have wanted had it known that" the President or courts may conclude that its removal restrictions were "beyond its authority." Seminole Tribe of Fla. v. Florida, 517 U. S. 44, 76 (1996). Statutes change only when Congress changes them, not when judges decide that they no longer vindicate Congress's purposes. See U. S. Const., Art. I, §§1, 7. As Judge Quattlebaum wrote in dissent, the Fourth Circuit's decision below "undermines important principles of our system of justice," including that law remains law despite the "political controversies of the day." National Assn. of Immigration Judges v. Owen, 160 F. 4th 100, 118 (2025) (en banc).

Justice Barrett rarely joins these sorts of separate writings. She must have been especially troubled by what the en banc Fourth Circuit did here—with good reason.

The Fourth Circuit has a tradition, in which the judges come off the bench after arguments and shake hands with counsel. This tradition should not blur the distinction between those at the bar and those on the bench.

The post SCOTUS Summarily Reverses The "Inquisitorial" Fourth Circuit Twice In One Term appeared first on Reason.com.

Besides the serious First Amendment concerns favoring a broad preemption ruling that would avoid such constitutional problems, the state-law suits in this case and others around the country seek to regulate national and international commerce in violation of the Commerce Clause and related structural constraints on extraterritorial regulation.

Boulder attempts to penalize multinational companies not merely for the local and immediate consequences of any local operations, but for the multi-causal long-term consequences of their sales and speech around the country and around the globe. And it is seeking to impose liability on Suncor for the joint consequences of millions of decisions by actors beyond its borders, operating in interstate and international trade. Whatever reticence this Court might have in preempting largely ordinary State regulation that incidentally affects interstate commerce, that reticence would be misplaced when it comes to such a major encroachment on international commerce and an attempt to impose Boulder's views of nuisance and appropriate speech on actors not just in other States but also in foreign countries.

For good reasons, this Court has understood Congress's delegated power over foreign commerce as exclusive of State powers. That understanding is consistent with the original public meaning of both the delegation of power to Congress in Article I, and the catch-all reservation of powers to the states and the people in the Tenth Amendment.

Regardless whether the Constitution supports the somewhat variable dormant interstate Commerce Clause as it had evolved over the years, a more textually grounded reading of the clause supports exclusive federal authority here. Boulder's attempt to impose Colorado law on interstate and foreign commerce conflicts with the Commerce Clause, Article I's delegation of powers, and the Tenth Amendment. And it more broadly conflicts with the Constitution's structure, which organizes horizontal relations among States on principles of (partial) state autonomy, equality, territoriality, non-aggression, and mutual recognition.

The power to "regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes" U.S. Const. art. I, § 8, cl. 3, is one of the "legislative Powers" that the Constitution "grant[s]," and promises will be "vested in[,] a Congress of the United States," U.S. Const. art. I, § 1.

As a textual matter Article I's grant of authority is exclusive. Taking the "words * * * in their natural and obvious sense, and not in a sense unreasonably restricted or enlarged," Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 304, 326 (1816), any "legislative power" granted "is * * * absolutely vested," id. at 329. And by vesting powers in Congress, the Constitution divested those same powers from the States. As Justice Story explained in Hunter's Lessee, "the sovereign powers vested in the state governments, by their respective constitutions, remained unaltered and unimpaired, except so far as they were granted to the government of the United States." Id. at 325 (emphasis added).

The text of the Tenth Amendment confirms this reading, providing that "[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." U.S. Const. amend. X (emphasis added). By such wording the Tenth Amendment necessarily recognizes that powers that are delegated to the United States are not "reserved" to the States or the people, but reside solely in the federal government. Congress might exercise its power to seek assistance from, or grant permission for, some state activities properly understood to "regulate" interstate or foreign commerce. But the default rule is the absence of state power to regulate interstate and foreign commerce—not endless state encroachment on delegated national authority unless and until Congress affirmatively says otherwise.

And that is true even though Congress has the undoubted option to affirmatively disable state regulation of extraterritorial commerce. The exercise of national legislative authority was designed to be difficult. Hurdles such as bicameralism, the potential veto, and the volume of matters that compete for Congress's attention slow and often stop such exercise. Default rules are thus important, and the constitutional default for Article I powers is that individual States may not take it upon themselves to exercise powers delegated to Congress. The Constitution sought to free foreign commerce from state mischief, not to preserve all opportunity for such mischief while the national legislative process struggles to keep up.

Consistent with a proper reading of the Constitutional text, this Court's early cases rejected any suggestion that the power to regulate extraterritorial commerce was held concurrently by Congress and the States.

In Gibbons v. Ogden, Daniel Webster argued that it would be "insidious and dangerous" for the States to have a "general concurrent power" with Congress that would allow the States to "do whatever Congress has left undone." 22 U.S. (9 Wheat.) 1, 17-18 (1824). This Court did not need to reach that question in Gibbons, id. at 208-212, but several justices did discuss it in the Passenger Cases, addressing fees imposed by New York on ships carrying people traveling into the State. Smith v. Turner, 48 U.S. (7 How.) 283 (1849) (Passenger Cases). Justice McLean extensively reviewed the various powers delegated to Congress, the necessity of their exclusiveness within the narrow confines of such delegations, and concluded:

Whether I consider the nature and object of the commercial power, the class of powers with which it is placed, the decision of this court in the case of Gibbons v. Ogden, reiterated in Brown v. The State of Maryland, and often re-asserted by Mr. Justice Story, who participated in those decisions, I am brought to the conclusion, that the power "to regulate commerce with foreign nations, and among the several States," by the Constitution, is exclusively vested in Congress.

Id. at 400.

Justice Story, for his part, spoke of one State's "cheerful acquiescence" in the exclusivity of the commerce power, a point he said had not been "seriously controverted." 2 Joseph Story, Commentaries on the Constitution of the United States 515, § 1067 (Bos., Hilliard, Gray & Co. 1833), https://tinyurl.com/ywemmyzh. He explained that the "power to regulate commerce is general and unlimited in its terms" and left "no residuum" to the States. Id. at 513, § 1063. He continued that "when a State proceeds to regulate commerce with foreign nations, or among the several states, it is exercising the very power, which is granted to congress; and is doing the very thing which congress is authorized to do." Id. at 514, § 1064.

The power to tax, by contrast, is different. Congress originally was empowered to adopt "uniform" taxes "throughout the United States" to pay for distinctly national obligations and activities "of the United States." U.S. Const. art. I, § 8, cl. 1. States may tax only within their jurisdiction and they do so for different ends. "In imposing taxes for state purposes, a state is not doing what congress is empowered to do." 2 Story, supra at 513, § 1064.

Especially in cases involving foreign commerce, this Court has described the commerce power as an exclusive delegation. In Crutcher v. Kentucky, 141 U.S. 47 (1891), this Court explained that the "prerogative, the responsibility, and the duty of providing for the security of the citizens and the people of the United States in relation to foreign corporate bodies or foreign individuals with whom they may have relations of foreign commerce, belong to the government of the United States, and not to the governments of the several states." Id. at 58.

This Court eventually moved away from its earlier understanding as to exclusive federal power over interstate commerce, discovering the very "residuum of power" in the States to act in "the absence of conflicting legislation by Congress," Southern Pac. Co. v. Arizona ex rel. Sullivan, 325 U.S. 761, 767 (1945), that Joseph Story rejected in his Commentaries. But this Court nonetheless continued to recognize greater exclusive Congressional authority as to foreign commerce, concluding that the federal "power when exercised in respect of foreign commerce may be broader than when exercised as to interstate commerce." atlan­tic Cleaners & Dyers v. United States, 286 U.S. 427, 434 (1932).

In atlantic Cleaners, this Court explained its conclusion that the Commerce Clause could be plenary as to foreign commerce but not as to interstate commerce by noting that "there is no rule of statutory construction" that precluded it from treating the "same word" as though it has "different meanings." Id. at 433.^[1] And indeed there is some "evidence that the Founders intended the scope of the foreign commerce power to be the greater." Japan Line, Ltd. v. Los Angeles County, 441 U.S. 434, 448 (1979).

Even taking those cases rejecting the exclusivity of the interstate commerce power on their own terms, any residuum of power left with the States was limited and would apply only to "matters of local concern" that would "in some measure affect interstate commerce" or "to some extent, regulate it." Southern Pac., 325 U.S. at 767 (collecting cases). For that reason, just over a decade after this Court decided Southern Pacific, it could still say, correctly, that its cases recognized that the "Commerce Clause gives exclusive power to the Congress to regulate interstate commerce, and its failure to act on the subject in the area of taxation nevertheless requires that interstate commerce shall be free from any direct restrictions or impositions by the States." Northwestern States Portland Cement Co. v. Minnesota, 358 U.S. 450, 458 (1959) (emphasis added) (citation omitted). In the foreign commerce context, this Court should be even more cautious in permitting direct or indirect burdens on international commerce.

The subsequent tendency to find even more exceptions to interstate commerce exclusivity—adding more judicial policymaking into the mix—was perhaps driven by concerns that an exclusive reading of an ever-expanding commerce power would foreclose too many state laws regulating ordinary local matters that in some way had an effect on interstate commerce. But while such concerns are understandable, they arise from a different error, not from a proper understanding of exclusivity.

Under an original and narrower view of the commerce power (apart from the erroneously expansive gloss of the Necessary and Proper Clause), any problem of excessively disabling state powers would have been limited. Cf. Albert S. Abel, The Commerce Clause in the Constitutional Convention and in Contemporary Comment, 25 Minn. L. Rev. 432, 493 (1941) ("On the whole, the evidence supports the view that, as to the restricted field which was deemed at the time to constitute regulation of commerce, the grant of power to the federal government presupposed the withdrawal of authority pari passu from the states."). As Justice Thomas has explained, the "Clause's text, structure, and history all indicate that, at the time of the founding, the term '"commerce" consisted of selling, buying, and bartering, as well as transporting for these purposes.'" Gonzales v. Raich, 545 U.S. 1, 58 (2005) (Thomas, J., dissenting) (quoting United States v. Lopez, 514 U.S. 549, 585 (1995) (Thomas, J., concurring))).

When the commerce power is properly constrained to those activities, any alleged harm from divesting the States of such power is necessarily cabined. "While in its content the commerce clause was designed to include only a limited number of matters, the states could no more legislate with propriety as to subjects falling within its limits than Congress could as to any subjects falling outside them." Abel, supra, 25 Minn. L. Rev. at 494.

Just as this Court has recognized that the vesting of powers in one branch forecloses exercise of or encroachment on such powers by another branch in the context of horizontal separation of powers, so too it should continue to recognize a vertical separation of powers between the federal government and the states, especially concerning the exclusive federal power to regulate foreign commerce. Plaintiffs' attempt to extend their tort laws to encompass extraterritorial conduct and global consequences reaches well into the regulation of foreign commerce that is the exclusive province of the federal government.

 

[1] A genuinely originalist and textualist reading would recognize that the Commerce Clause, at least at its core and not expanded beyond its terms over the years, is exclusive as to interstate commerce as well. But this Court's reluctance to return to the original meaning of the Commerce Clause in the interstate commerce context should not prevent it from maintaining the original meaning of the Clause in the foreign commerce context, consistent with its past precedent in this area.

The post Amicus Brief in <i>Suncor Energy</i> on the Foreign Commerce Clause and Climate Change Lawsuits appeared first on Reason.com.

SUMMARY OF ARGUMENT

Trying to avoid federal preemption, plaintiffs in this and other climate-change cases have shifted from claims targeting emissions to claims alleging supposed "deception." These "deception"-based claims are still preempted, because they still target emissions by seeking relief for injuries allegedly caused by emissions. But that shift also threatens numerous First Amendment violations and the possibility of conflicting regulations of national speech, association, and petitioning that further support preemption of such local efforts. Climate-change plaintiffs seek to punish energy companies not just for the asserted consequences of emissions, which result from the decisions and actions of millions of other actors and governments, but for the companies' speech about climate change that plaintiffs claim led to such emissions.

This case is an example of this pattern, but it is not an outlier: There are many like it across the country. And there likely will be many more in the field of climate change, with some potentially taking diametrically opposed views of what scientific speech is true or false. This Court should keep the serious First Amendment issues underlying this litigation campaign in mind in deciding this case. The danger to First Amendment rights is another reason favoring uniform national regulation of these issues as opposed to opportunistic state and local overreach that seeks to punish and suppress speech and debate on this controversial topic.

ARGUMENT

[I.] The First Amendment Protects Advocacy, Petitioning, and Expressive Association Related to Debates About Climate Change.

The speech that forms the basis for alleged liability in this case is core advocacy, petitioning, and expressive association that is protected by the First Amendment. Merely characterizing it as "marketing" does nothing to change its essential nature and its constitutional protection….

[A.] Climate-Change Lawsuit Claims Rest in Part on Defendants' Constitutionally Protected Speech, Petitioning, and Association.

There is no genuine doubt that the recent climate-change lawsuits brought by governments turn on defendants' political advocacy. Notwithstanding the assertion by plaintiffs that they "do not seek to impose liability" based on defendants' "speech," "participa­t[ion] in public debates," or "lobbying or petitioning." J.A.139, ¶¶ 541-542, that is precisely what they are doing. Plaintiffs expressly "seek to impose liability on Defendants in connection with misrepresentations about the known dangers of their products, in connection with their marketing of those products and in connection with the sale of those products," J.A.139, ¶ 541. But they include all public speech directly or indirectly related to their products and climate change under the rubric of "marketing" and have a boundless conception of what speech is "in connection" with marketing and sales, making their disclaimer meaningless. Other parts of the Amended Complaint show that these supposed misrepresenta­tions do indeed include "participat[ion] in public de­bates" about climate change….

[B.] The First Amendment Protects Speech on Scientific Questions.

The speech over which climate change plaintiffs routinely sue is fully protected by the First Amendment, because it is advocacy on matters of core public concern and public policy.

In United States v. Alvarez, five members of this Court expressly recognized that the government cannot try to "penalize purportedly false speech" on such matters. 567 U.S. 709, 731 (2012) (Breyer, J., concurring in judgment). Justice Alito, joined by Justices Scalia and Thomas, reasoned:

[T]here are broad areas in which any attempt by the state to penalize purportedly false speech would present a grave and unacceptable danger of suppressing truthful speech. Laws restricting false statements about philosophy, religion, history, the social sciences, the arts, and other matters of public concern would present such a threat. The point is not that there is no such thing as truth or falsity in these areas or that the truth is always impossible to ascertain, but rather that it is perilous to permit the state to be the arbiter of truth.

Id. at 751-752 (Alito, J., dissenting). Justice Breyer, joined by Justice Kagan, expressly echoed this:

As the dissent points out, "there are broad areas in which any attempt by the state to penalize purportedly false speech would present a grave and unacceptable danger of suppressing truthful speech." Laws restricting false statements about philosophy, religion, history, the social sciences, the arts, and the like raise such concerns, and in many contexts have called for strict scrutiny.

Id. at 731-732 (Breyer, J., concurring in the judgment). Justice Kennedy's plurality opinion did not discuss this point, but that was likely because the plurality took an even more speech-protective view than did the concurrence and the dissent, see id. at 726-729, and thus saw no need for focusing specially on these categories of speech.

These opinions specifically refer to "the social sciences," but their logic applies equally to other sciences. There too "it is perilous to permit the state to be the arbiter of truth." There too placing public debate at the mercy of federal, state, and county officials, as well as of judges and jurors, "would present a grave and unacceptable danger of suppressing truthful speech." There too the underlying speech is on matters of the most serious "public concern."

Indeed, this Court has long spoken of broad protection for "scientific expression": "[I]n the area of freedom of speech and press the courts must always remain sensitive to any infringement on genuinely serious literary, artistic, political, or scientific expression." Miller v. California, 413 U.S. 15, 22-23 (1973). And that is especially apt in the climate change cases, where the "scientific expression" is intimately tied with "political * * * expression" on difficult public policy questions—such as whether the "downside to [the] consumption [of fossil fuels] is simply outweighed by their utility."

As this Court has recognized in recent years, many questions yield "fierce scientific and policy debates." United States v. Skrmetti, 605 U.S. 495, 525 (2025). See, e.g., Chiles v. Salazar, 146 S. Ct. 1010, 1027-1029 (2026) (discussing both the modern debate about sexual orientation and gender identity conversion therapy, and the past debate about whether homosexuality was a "mental disorder"); Skrmetti, 605 U.S. at 500-505, 523-525 (discussing the debate over youth gender medicine); Roman Cath. Diocese of Brook­lyn v. Cuomo, 592 U.S. 14 (2020) (per curiam) (re­solving the Free Exercise Clause question against the backdrop of the debate over COVID-19 lockdowns). Human nature being what it is, the "fierce[ness]" of the debates may manifest through each side feeling so strongly about its own correctness that it does not believe that there is indeed a genuine debate.

Partisans may be confident that the science is settled in their favor, and that only liars would contest that conclusion. Jurors may take the same view. Especially in relatively ideologically homogeneous communities, such jurors may well form the required supermajority for imposing massive liability on those with whom they disagree. In federal courts, civil juries must at least be unanimous. But most state court systems do not require civil jury unanimity.

Yet the supposed "expert consensus" relied on by decision makers—county officials, judges, jurors, and others—is often illusory. And in any event, that consensus cannot be a substitute for the ongoing process of free discussion that the First Amendment prescribes.

"[T]he American people and their representatives are entitled to disagree with those who hold themselves out as experts" in enacting legislation. Skrmetti, 605 U.S. at 530 (Thomas, J., concurring). And they are likewise entitled to hear from those who disagree with the putative experts. Resolving the policy implications of scientific debates is left "to the people, their elected representatives, and the democratic process." Id. at 525 (majority op.). Challenging the conventional wisdom of the day is often the foundation of political, social, and scientific advances. Indeed, such freedom of speech on all questions, including scientific ones, is what allows "the democratic process" to function.

[C.] The First Amendment Protects Speech on Scientific Questions Touching on One's Business.

Just as the First Amendment protects the right of fossil fuel critics to speak about scientific matters, it protects the same right of fossil fuel defenders, including fossil fuel producers. Whatever the justifications and merits of less rigorous protection for commercial advertising under this Court's jurisprudence, e.g., Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 65-68 (1983), this Court tolerates such differential treatment precisely because "[a] company has the full panoply of protections available to its direct comments on public issues." Id. at 68.

In Zauderer v. Office of Disciplinary Counsel, this Court concluded that speech about medical matters in a lawyer's commercial advertising was less protected commercial speech in part because "Ohio has placed no general restrictions on appellant's right to publish facts or express opinions regarding Dalkon Shield litigation; Ohio's Disciplinary Rules prevent him only from conveying those facts and opinions in the form of advertisements of his services as an attorney." 471 U.S. 626, 637 n.7 (1985) (quoting the "full panoply of protections available to its direct comments on public issues" statement from Bolger, 463 U.S. at 68). Central Hudson Gas & Electric Corp. v. Public Service Commission likewise distinguished commercial speech from fully protected "direct comments on public issues" by energy companies. 447 U.S. 557, 562 n.5 (1980). Whatever this Court may eventually decide as to reduced protection for commercial speech, any such reduction necessarily depends on businesses retaining the freedom to speak in public debate, even if not in purely commercial advertising.

Indeed, the case that Bolger cited for the "full panoply of protections" proposition—Consolidated Edison Co. v. Public Service Commission of New York, Inc., 447 U.S. 530 (1980)—involved an energy company promoting an environmentally controversial energy source (in that case, nuclear power). See Bolger, 463 U.S. at 68 n.16. And this Court in Consolidated Edison treated such speech as fully protected "participat[ion] in * * * public debate." 447 U.S. at 535.

Furthermore, this Court has long recognized that a company's motivation to protect its own business through its speech does not strip the speech of full protection. "Noerr shields from the Sherman Act a concerted effort to influence public officials regardless of intent or purpose." Pennington, 381 U.S. at 670.

And while private collusion may be regulated under the antitrust laws, that is so precisely because public speech remains fully protected: Even business­es who seek anticompetitive legislation "can, with full antitrust immunity, engage in concerted efforts to influence * * * governments through direct lobbying, publicity campaigns, and other traditional avenues of political expression." Allied Tube & Conduit Corp. v. Indian Head, Inc., 486 U.S. 492, 510 (1988). Likewise, businesses can "present[] and vigorously argu[e] accurate scientific evidence before a nonpartisan private standard-setting body." Id. Businesses can surely do the same before the public more generally.

Speech on public issues, even by companies with an economic interest in the outcome, is protected in large part because speech can be valuable to listeners regardless of the speaker's identity. Corporate speech—which will usually be economically self-interested—is protected "based not only on the role of the First Amendment in fostering individual self-expression but also on its role in affording the public access to discussion, debate, and the dissemination of information and ideas." First Nat'l Bank of Boston v. Bellotti, 435 U.S. 765, 775-76, 783 (1978).

Listeners need to be able to hear freely from both sides of the debate. Critics of fossil fuel companies speak prominently and freely, without worry of ruinous liability for statements about broad scientific questions, notwithstanding the varied downstream harms that would occur if they were wrong. For the benefit of listeners, fossil fuel companies must be permitted to engage in public debate without fear of liability or double standards. The government "has no * * * authority to license one side of a debate to fight freestyle, while requiring the other to follow Marquis of Queensberry rules." R.A.V. v. City of St. Paul, 505 U.S. 377, 392 (1992).

Justice Breyer's dissent, joined by Justice O'Connor, in Nike, Inc. v. Kasky, 539 U.S. 654 (2003), supports this as well. Justice Breyer reasoned that Nike's public speech responding to criticisms of its production processes was fully protected, because it "appear[ed] outside a traditional advertising format, such as a brief television or newspaper advertisement" and did "not propose the presentation or sale of a product or any other commercial transaction." Id. at 665 (Breyer, J., dissenting). Nike's speech, Justice Breyer noted, sought "to convey information to 'a diverse audience,' including individuals who have 'a general curiosity about, or genuine interest in,' the public controversy surrounding Nike." Ibid. (citations omitted).

And, most importantly, the content of Nike's speech made "clear that, in context, it concerns a matter that is of significant public interest and active controversy, and it describes factual matters related to that subject in detail." Ibid.Nike's speech described "Nike's labor practices" and responded "to criticism of those practices," and did so "because those practices themselves play an important role in an existing public debate" "in which participants advocated, or opposed, public collective action." Ibid."The First Amend­ment's protections of speech and press were 'fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes.'" Id. at 677-678 (Breyer, J., dissenting) (quoting Roth v. United States, 354 U.S. 476, 484 (1957)). This was said about speech discussing a company's labor practices—and the reasoning applies even more to discussions about some of the weightiest scientific and political issues being debated by Americans today.

For more of Part I, focused on the Petition Clause, expressive association, and compelled speech, see the PDF.

The post Amicus Brief in <i>Suncor Energy</i> on the First Amendment and Climate Change Lawsuits appeared first on Reason.com.